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Miller v. Larre

Court of Appeals of Louisiana, Fifth Circuit

December 11, 2019

JOSEPH MILLER, JR., M.D. AND BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE
v.
JOSEPH C. LARRE AND ASHLEY D. NICHOLS AS COUNSEL FOR/AND MONIQUE EVANS, WIFE OF/AND JOHN EVANS, INDIVIDUALLY AND ON BEHALF OF AIDEN EVANS

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 743-423, DIVISION "G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, JOSEPH MILLER, JR., M.D. AND BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE Katherine B. Muslow Meredith A. Cunningham.

          COUNSEL FOR DEFENDANT/APPELLANT, JOSEPH C. LARRE PERSONALLY ON BEHALF OF MONIQUE, JOHN AND AIDEN EVANS, AND J LARRE LAW FIRM LLC Joseph C. Larre'.

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson.

          ROBERT A. CHAISSON, JUDGE.

         In this nullity action of a prior medical malpractice judgment by default, Joseph C. Larre, Monique Evans, and John Evans, appeal a summary judgment in favor of Dr. Joseph Miller, Jr. and the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College ("LSU") that declared the prior medical malpractice judgment by default against Dr. Miller an absolute nullity. Mr. Larre and the Evans further appeal the denial of their cross-motion for summary judgment. For the reasons that follow, we affirm the judgment of the trial court.

         FACTS AND PROCEDURAL HISTORY

         On October 30, 2008, John Evans and his wife, Monique Evans, filed suit on behalf of themselves and their minor child against Dr. Joseph M. Miller, Jr., alleging that Dr. Miller had committed medical malpractice regarding advice and recommendations that he gave to the Evans regarding termination of Mrs. Evans' pregnancy.[1] The Evans' petition indicated that it was filed pursuant to La. R. S. 40:1299.41, et seq., which is the Louisiana Medical Malpractice Act ("LMMA") for private physicians.[2] After the citation to Dr. Miller was returned by the Jefferson Parish Sheriff as "unserved," the Evans requested the appointment of a special process server to effectuate service.

         After the return of service by the special process server was filed indicating personal service upon Dr. Miller by "Drop Service," and the delays for answering the petition by Dr. Miller had expired with no answer being filed, the Evans proceeded to confirm a default judgment against Dr. Miller in the underlying medical malpractice action, which judgment against Dr. Miller in the amount of $47, 850 was rendered on January 3, 2012.

         On October 16, 2014, after learning of the default judgment as the result of an attempted garnishment of Dr. Miller's wages, Dr. Miller and his employer, LSU, filed suit against the Evans and their attorney, Joseph C. Larre, to have the January 3, 2012 default judgment annulled. In their petition to annul, Dr. Miller and LSU alleged that the default judgment was an absolute and/or relative nullity for four reasons: first, Dr. Miller, as a state-employed physician working within the course and scope of his employment at the time that he treated Mrs. Evans cannot be cast in judgment pursuant to the Louisiana Malpractice Liability for State Services Act ("MLSSA"); second, LSU, as the employer of Dr. Miller, is an indispensable party to the action against Dr. Miller that the Evans failed to join in the litigation; third, because they failed to join an indispensable party, the procedures used by the Evans to obtain the default judgment were fatally flawed; and fourth, the Evans failed to serve Dr. Miller with citation and process in the underlying malpractice action.

         On July 31, 2017, Dr. Miller and LSU filed a motion for summary judgment asserting that there were no genuine issues of material fact regarding the four deficiencies to the default judgment as alleged in their petition to annul and that they were therefore entitled to judgment as a matter of law declaring the January 3, 2012 default judgment a nullity. In response, on January 9, 2018, Mr. Larre and the Evans filed an opposition to the motion for summary judgment and also filed their own motion for summary judgment, apparently seeking to have the petition to annul dismissed.

         After hearing the motions for summary judgment, the trial court, on May 24, 2018, granted Dr. Miller's and LSU's motion for summary judgment, declaring the January 3, 2012 default judgment absolutely null, and further denied Mr. Larre's and the Evans' motion for summary judgment. It is from this May 24, 2018 judgment that Mr. Larre and the Evans now appeal.

         DISCUSSION

         Mr. Larre and the Evans raise the following issues in their assignments of error: 1) whether genuine issues of material fact exist that preclude summary judgment in favor of Dr. Miller and LSU; 2) whether Dr. Miller acquiesced in the judgment by not attempting to enjoin its enforcement; 3) whether LSU was an indispensable party to the underlying litigation; 4) whether Dr. Miller and LSU have shown that fraud or ill practices were used to obtain the judgment; 5) whether the trial court erred in denying Mr. Larre's motion for summary judgment regarding Dr. Miller's and LSU's claim for legal malpractice against him;[3] 6) whether the claim of Mr. Evans, who did not have a doctor/patient relationship with Dr. Miller, sounds in medical malpractice; and 7) whether the claim of Mrs. Evans was not entirely a medical malpractice claim as it ...


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